How to Apply for Spousal Maintenance in South Africa

    How to Apply for Spousal Maintenance in South Africa

    Marriage is an emotional journey with legal implications. When a marriage ends, partners must navigate their new realities – including financial matters like spousal maintenance. This post provides a comprehensive guide on how to apply for spousal maintenance or alimony in South Africa.

    What is Spousal Maintenance

    Spousal maintenance, also known as alimony, refers to court-ordered financial support provided by one ex-spouse to the other after a divorce. It aims to ensure the dependent spouse’s basic needs are met as they transition to financial independence.

    In South Africa, spousal maintenance falls under the Maintenance Act 99 of 1998. A spouse has a legal duty to provide financial support for their partner if they are financially dependent or unable to adequately support themselves. Dependence can arise from factors like caring for children, lack of income/assets, disabilities, advanced age, or lack of vocational skills.

    The court determines a “just and equitable” maintenance amount based on both spouses’ financial means and needs. It considers income, expenses, assets/liabilities, standards of living during the marriage, health, age and employment potential. Maintenance usually ends once the recipient remarries but can be revised if circumstances change substantially.

    Establishing Grounds for a Maintenance Claim

    To qualify for spousal maintenance, the claimant spouse bears the initial onus to show they have legitimate grounds as per the Maintenance Act.

    Some key factors evaluated include:

    Financial dependence on the other spouse due to lack of income/assets or adequate means of support. Income disparity is a major consideration.

    Inability to be self-supporting due to caregiving responsibilities like raising children or caring for elderly/disabled family members during the marriage.

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    Lack of equitable share of marital assets/property upon divorce due to unfair prejudice during the divorce proceedings or marriage.

    Health issues, disabilities or lack of employable skills that hamper the ability to earn a steady living. Advanced age can also be considered.

    Standard of living expectations established during the marriage. The court ensures dependent spouses don’t experience a precipitous decline post-divorce.

    Establishing strong evidence for the above helps the court rule in favor of a maintenance claim against the financially independent spouse. It is wise consult a divorce/family lawyer for guidance.

    Initiating a Maintenance Application

    Once grounds for a claim are determined, here are the steps to initiate a spousal maintenance application in South Africa:

    1. Serve Notice of Intention to Claim Maintenance

    Send a letter of demand or notice of intention to the other spouse via registered mail, detailing maintenance expectations. Give them a chance to respond before further action. Keep proof of delivery.

    2. File Maintenance Court Papers

    If no settlement is reached, draft Form MM17 (Prescribed Maintenance Form) and file it with Magistrates Court. The clerk will allocate a court date.

    3. Attend Court and Present Your Case

    At the hearing, give clear testimony establishing your financial dependence. Submit proof like tax returns, bank statements, pay slips etc. The respondent spouse can rebut the claims.

    4. Obtain Court Order if Successful

    If the court grants your claim, an interim/final maintenance order will be issued. Non-compliance is a criminal offense punishable by fines or imprisonment.

    5. Enforce/Modify Order as Needed

    Use enforcement mechanisms if maintenance isn’t paid. You can also apply for revision if circumstances change considerably. Keep proof of payments or non-payments.

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    Engage a lawyer well-versed in family law for smooth navigation. Proper documentation and patience are key throughout this process.

    Factors Affecting Maintenance Awards

    When determining a suitable award, magistrates weigh several factors holistically:

    Income/Means of Both Parties

    • Relative incomes, earning capacities, job skills and employability.

    Standard of Living During Marriage

    • Lifestyles, expenditure patterns, properties etc while living together.

    Health and Age

    • Impacts on earning abilities now and in future from health/disabilities or age.

    Care of Children/Dependents

    • Custody arrangements impact costs, maintenance may consider childcare duties.

    Duration of Marriage

    • Longer periods garner higher consideration for dependent partners.

    Contributions to the Union

    • Roles played during the marriage like income generation and homemaking.

    Magistrates have discretion but generally aim to avoid poverty for the dependent while ensuring fairness. Understanding these factors aids realistic expectations.

    Frequently Asked Questions

    Here are answers to some common queries about applying for spousal maintenance:

    Can I claim after a customary or religious marriage?
    Yes, the Maintenance Act applies regardless of marriage type as long as it was legally recognized in South Africa.

    What if the other spouse isn’t in South Africa?
    You can still apply. If served notice, they may choose to participate or court can proceed in their absence using evidence presented. Resulting orders can be enforced internationally too via reciprocal agreements.

    Does cohabitation or a new relationship impact maintenance?
    Cohabitation alone may not end entitlement but could affect the award amount. Maintenance usually terminates on remarriage but partners can contract prenuptial agreements preserving certain entitlements.

    What if the other spouse is unemployed or earns less?
    Courts may still order maintenance based on realistic earning capacities or impute income rather than actual earnings to avoid deliberate under-employment or unemployment to dodge obligations. Consequences like fines/jail can motivate compliance.

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    How long does the application process typically take?
    Simple, uncontested claims where both parties participate cooperatively may be resolved within a few months. Complex disputes sometimes take a year or more depending on evidence presented, adjournments and appellate processes if dissatisfied with lower court rulings. Patience and proper legal guidance are advisable.

    With diligent preparation and a nuanced understanding of applicable laws and considerations, spouses stand a fair chance of obtaining appropriate spousal maintenance upon divorce under the South African regime. While not a simple process, it aims to fulfill societal duties of financial support during life transitions for married partners.

    Also Read: Guidance on Alimony Laws: When to Consult an Alimony Lawyer


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